Citation Nr: 9915378
Decision Date: 06/01/99 Archive Date: 06/15/99
DOCKET NO. 94-42 882 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in New
Orleans, Louisiana
THE ISSUE
Entitlement to an increased rating for residuals of post-
operative fusion, L4-S5 with spondylolisthesis, currently
rated as 40 percent disabling.
REPRESENTATION
Appellant represented by: To be determined
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
R. Cain, Associate Counsel
INTRODUCTION
The appellant had active service from January 1975 to July
1975.
This case comes before the Board of Veterans' Appeals (Board)
on appeal from a November 1993 rating decision of the
Department of Veterans' Appeals (VA) Regional Office in
Atlanta, Georgia, which confirmed a 40 percent rating for
service connection for residuals of postoperative fusion L4-
S5 with spondylolisthesis.
During the course of the appeal, the claim file was
transferred to the New Orleans, Louisiana Regional Office
(RO) and that RO maintains jurisdiction over the appeal.
At the hearing on appeal, the appellant claimed service
connection for sexual dysfunction secondary to his back
condition. This issue has not been adjudicated, and is
referred to the RO for appropriate action. Keller v. Brown, 6
Vet. App. 157 (1994).
REMAND
The appellant's last VA examination was in April 1994.
Because the last VA examination was more than 5 years ago,
the Board cannot adequately determine the current status of
the back disability.
The appellant's claims folder indicates that he is currently
represented by the Georgia Department of Veterans Service.
However, it appears that he may no longer reside in Atlanta,
Georgia, but New Orleans, Louisiana. His representation
should be clarified.
Accordingly, this case is remanded to the RO for the
following development:
1. The RO should ask the appellant to
identify current sources of treatment for
his back. All such records should be
obtained by the RO.
2. The RO should inform the appellant
that if he continues to reside outside
the state of Georgia, he is no longer
represented by the Georgia Department of
Veterans Services. The RO should take
the necessary steps to provide him with
any further representation if he so
desires.
3. The RO should schedule the appellant
for VA examination, to include orthopedic
and neurologic evaluations, for the
purpose of determining the nature and
severity of his residuals of post-
operative fusion, L4-S5 with
spondylolisthesis. The claims file
should be made available to the examiner.
In addition to addressing the range of
motion, the examiner is required to
specifically address whether there is
functional loss due to weakness, excess
fatigability, incoordination, pain or
pain on movement. DeLuca v. Brown, Vet.
App. 202 (1995) (medical examination must
comply with requirements of 38 C.F.R.
§§ 4.40, 4.45, and 4.59 which, in
addition to the schedular criteria,
require the examiner to express opinion
on whether pain could significantly limit
functional ability on motion during use
with acute flare-ups of disability and in
terms of the degree of additional range-
of-motion loss due to weakened movement,
excess fatigability, or incoordination).
The examination should also specify all
symptomatology associated with the back
disability.
The appellant should be given adequate
notice of the requested examination that
includes advising him of the consequences
of failure to report for the examination.
If he fails to report for the
examination, this should be noted in the
claims folder and a copy of
notification(s) of the examination should
be associated with the claims folder.
4. The RO should review the claims
folder and ensure that all of the
foregoing development actions have been
completed. If any development is
incomplete, appropriate corrective action
should be taken.
5. After completion of the above-
referenced development, the RO should
readjudicate the issue with consideration
given to all of the evidence of record,
including any additional medical evidence
obtained by the RO pursuant to this
remand. If the benefit sought is not
granted, the appellant and any
representative should be provided a
Supplemental Statement of the Case. The
case should then be returned to the Board
after completion of the usual
adjudication procedures.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome of this case. The appellant need take no action
unless otherwise notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans' Benefits Improvements Act of 1994,
Pub. L. No. 103-446, § 302, 108 Stat. 4645, 4658 (1994),
38 U.S.C.A. § 5101 (West Supp. 1999) (Historical and
Statutory Notes). In addition, VBA's Adjudication Procedure
Manual, M21-1, Part IV, directs the ROs to provide
expeditious handling of all cases that have been remanded by
the Board and the Court. See M21-1, Part IV, paras. 8.44-
8.45 and 38.02-38.03.
NANCY I. PHILLIPS
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991& Supp. 1999), only a
decision of the Board of Veterans' Appeals is appealable to
the United States Court of Appeals for Veterans Claims. This
remand is in the nature of a preliminary order and does not
constitute a decision of the Board on the merits of your
appeal. 38 C.F.R. § 20.1100(b) (1998).